No capital gains in a business reorganization if consideration not determinable. Transfer pricing law does not apply if there is no income
Dec 2, 2009 Income Tax
AAR Ruling – transfer of shares of Indian Subsidiaries of an American company without consideration in a scheme approved for bankruptcy proceedings in an American Court would not attract capital gains and consequently, transfer pricing provisions cannot be applied in such transactions [A.A.R. No. 788 of 2008 - Dana Corporation]
The applicant, a USA company, held shares in an Indian company. As part of a bankruptcy reorganization process, the shares in the Indian company together with other non-Indian assets & liabilities were transferred to other USA companies. The liabilities taken over were more than the assets. The agreement provided that the transfer of the shares was without consideration. The AAR had to consider (i) whether the liabilities of the transferor taken over by the transferee could be said to be “consideration” for transfer of the Indian shares so as to make it chargeable to capital gains and (ii) whether even if there was no chargeable ‘capital gains’, the applicant could be assessed on an ‘arms length” basis under the transfer pricing provisions. HELD answering both questions in favour of the applicant:
(i) The effect of B. C. Srinivasa Setty 128 ITR 294 (SC) is that ss. 45 & 48 are an integrated code and must be read together. If there is no ‘consideration’ u/s 48 there can be no capital gains u/s 45. The ‘profit or gain’ or ‘the full value of the consideration’ envisaged by ss. 45 & 48 is not something which remains ambivalent or indefinite or indeterminable and cannot be arrived at on notional or hypothetical basis. It must be a distinctly and clearly identifiable component of the transaction. It cannot be implied or assumed;
(ii) The liabilities of the applicant taken over as a part of reorganization cannot be treated as consideration nor can it adopted as a measure of consideration for the transfer of shares. The parties did not intend that a specified extent of liabilities taken over should be treated as consideration for the transfer of shares. One cannot find consideration for the transfer by means of conjectures and assumptions. When entire assets and liabilities are taken over in order to reorganize the business, it is difficult to envisage that a proportion of liabilities constitutes consideration for a particular transfer. No commercial or accountancy principle supports such inference. It is difficult if not impossible to predicate that a given part of the liabilities represents the consideration for transfer and such consideration has been passed on to the transferor. One has to consider the entire purpose and substratum of reorganization and cannot import artificial notions of consideration. Accordingly, the take over of liabilities under the reorganization plan cannot be treated as consideration for the transfer of the Indian company shares by the applicant;
(iii) The argument of the Revenue that the transfer pricing provisions will apply even if there is no income is not acceptable. S. 92 is not an independent charging provision but deals with “Computation of income from international transactions”. It provides that “any income arising from an international transaction shall be computed having regard to the arm’s length price”. The expression ‘income arising’ postulates that the income has arisen under the substantive charging provisions of the Act. S. 92 is not intended to bring in a new head of income or to charge tax on income which is not otherwise chargeable under the Act.
Our view:
Although the AAR Ruling is applicable only in the case of an Applicant who has sought it, it nevertheless carries a persuasive value. This ruling reinforces the proposition that, the provisions of section 92, dealing with the evaluation of the income arising from an international transaction, whether it is at arm?s length, comes into play only if such income is taxable under the provisions of sections 4 and 5 of the ITA. Thus, if there is no income or the income cannot be brought to charge under the ITA, then section 92 cannot come into play.
Advance Ruling Details:-
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BEFORE THE AUTHORITY FOR ADVANCE RULINGS (INCOME TAX) NEW DELHI 30th Day of November, 2009 PRESENT Mr. Justice P.V.Reddi (Chairman) A.A.R. No.788 of 2008 |
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| Name & address of the applicant : | Dana Corporation(Through its successor, Dana Companies LLC
a subsidiary of Dana Holding Corporation) 4500, Dorr Street, P.O. Box 1000 Teledo, Ohio 43697 |
| Commissioner concerned : | Director of Income-tax(International Taxation), Mumbai |
| Present for the applicant : | Mr. A.V. Sonde, Sr. AdvocateMr. Achin Goel, Advocate
Mr. Rahul Yadav, Advocate Mr. Rajan Vora, C.A. Ms. Sheetal Shah, C.A. |
| Present for the Department : | Mr. Parag A. Vyas, Advocate |
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Tags: Advance Ruling, advance rulings, bankruptcy reorganization, capital gains, dana corporation, dorr street, indian shares, international taxation, reddi, sonde, teledo ohio, transferee, transferor, usa companies, usa company
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